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GRIFFITU pointment of an administrator, is determined by the
act of the testator in appointing an executor. The ad. FRAZIER. ministrator derives all his rights from the Court of or
dinary, and nothing from the will. 1, Com. Dig. 340. 1, Sulk. 302. Toler ex'r. 76, 98. 2, Bac. Abr. 381, 386, 401. 2, Plowd. 271.
The grant of letters of administration has, in some cases, been decided to be void, even after the refusal of the executor to take upon himself the execution of the will. 2, Bac. Abr. 386-Went. 145.
The ordinary in granting administration, is a minis. terial, not a judicial officer. Toler, 50, 66. Jac. Law, Dict. tit. ea ecutor. 12, Vod. 437.
In the case under consideration, the executor had proved the will; and it did not appear to the ordinary that there were any goods and chattels unadministered. If this were the fact, the ordinary had no jurisdiction in
2, Bac. Abr. 385. Griffith's collection of South Carolina laws, p, 35, 492. Obir's administrator v.
--, M. 8. report of a case decided in South Carolina,
By the statute of 38, Gen. 3, C. 87, to remedy the defect of the law in not giving to the ordinary the power of appointing an administrator durante absentia of an exccutor who had proved the will, it was evident that, previous to that statute, the ordinary possessed no such power. That statute was so explained in the case of Taynton v. Hannay, 3, Bos. and Pul. 26. Toler, 104.
When the executor had taken upon himself the trust of executing the will, the goods were out of the jurisdiction of the ordinary. Went. 39. 4, Burn's eccl. law.
If the jurisdiction of the ordinary ceased upon the qualification of the executor, all his subsequent acts in relation to the business were void-3, I. R.130. Toller 128. The Supreme Court of the United States has decided this principle in cases analogous to the present-, Cranch, 241, Rose v. Himely. 3, Cranch, 331, Wise t. Withers. Where a Court has no jurisdiction in regard to a particular subject, trespass will lie against a sheriff for executing its orders relative thereto.
2. Admitting the administration granted to Lamotte GRIFFITH to have been rightful, yet the execution against him, under which the land in question was sold, was abso- FRAZIER. lutely void ; because the thirty day rule, under which the Plaintiff attempted to revive the judgment in this case, was admissible only where the judgment had expired by lapse of time merely; but was not competent to revive a suit or a judgment against the representative of a dead party, which could only be done by scire facias, and no scire facias having issued in this case to make Lamotte a party, the execution against him was absolutely void for want of a judgment whereon to ground it---Griffith's collection of s. Carolina laws, 466, 7, sec. 7."
PINKNEY, Attorney General, same side.
The principal if not the only point in controversy is, whether the Court of ordinary had jurisdiction in the case now under consideration.
The ordinary in receiving probate of a will, acts ministerially; and when the will is proved, he is functus officio. The authority of the executor is derived from the will. The only power of the ordinary is to ascer. tain the existence of the will.
If administration be granted upon the supposition that no will exists, and a will afterwards appear, all the proceedings under the administration are void the administration is a mere nullity-Toler, 120, 121.
If there be a will, administration cannot be granted until the executor has refused or neglected to appear on summons-Toler, 93.
If administration be granted durante absentia of the executor, it becomes void upon the return of the executor and probate of the will. After probate the ordinary has no further jurisdiction.
The reason of the thing is obvious. The will vests the testator's property in the executor. He has a right after probate, to appoint an attorney. But according to the doctrine contended for by the plaintiff, the ordinary
GRIFFITH may also appoint an attorney in the place of the execu
V. tor. This would be a manifest inconsistency. The exFRAZIER. ecutor, after accepting the trust, is bound to administer,
and is liable for the goods entrusted to him. See MS. report of the case of Ford v. Travis, in the Court of appeals of South Carolina, in which the Court decided unanimously that after probate of a will, the grant of administration is void although the executor is absent.
HARPER, in reply.
If this case is against the Plaintiff in error, it is a case of sheer law against justice. The Plaintiff in error is a fair, bona fide purchaser, without notice, under the sanction of the decrees of the Courts of the state where the land lies.
The principle contended for by the Defendant, is only true as to the general disposition of the estate. It does not apply to the temporary interference of the ordinary in particular cases, the peculiar circumstances of which render such interference necessary ; such as cases of administration durante minori ætate, ad colligenda bona, fc.
In the case of Ford v. Travis, cited by the counsel on the opposite side, the ordinary had granted unlimited administration for all purposes and forever ; but in the case now before the Court, the grant of administration is special and temporary, as appears by the recital in the letters themselves.
The grant of these letters was nothing more than the appointment of a curator. In England, the ordinary has a general power to issue letters of administration durante absentia. The statutes of Edw. 3 and H. 8, it is true, did not give a direct authority to grant administration in any case where there was an executor; but a practice grew out of the equity of those statutes, to grant temporary administration during the inability of the executor to act; as pendente lite, minori ætate, executor insane, &c. 2 P. Williams, 576, Walker v. Wollaston.
The general power of the ordinary to grant adminis
tration ceases on the probåte of a will in which an ex- GRIFFITH ecutor is named; but not his power over the estate for special, temporary purposes. The case in P. Williams, FRAZIER, just cited, in which case probate had been granted, states the reasons for this temporary interference. The reason for granting administration durante absentia is the same as for granting it.durante minori cetate. The degree of the necessity makes no difference: it is sufficient that there is a necessity. It is said that the executor may appoint an attorney. True; but suppose he does not suppose that, without so doing, he abandons the estate, and leaves the country. Would not this be a case for the interference of the ordinary in the tempo- , rary appointment of an administrator? The only inference that can be drawn from the statute of Geo. 3, C. 87, which has been cited on the other side, is, that the power of the ordinary to grant administration in such cases was doubted; not that it did not exist : and so is the case in 3 Bos. and Pul. 26, to be understood. The statute of Geo. 3 is only declaratory of the common law; it does not enact a new law,
Such, then, is the doctrine in England on this subject: In South Carolina it is the same.
Until the year 1712, there is no trace of the existence of ordinaries in South Carolina. In that year an act was passed declaring the statutes of 13 Edw. 1, c. and 31, Ed. 3. C. 11, to be in force in that colony, and enacting that the powers mentioned in those acts as belonging to the ordinary in England, shall be exercised by the same kind of officer in South Carolina.
The act of 1741, directing the manner of returning inventories, speaks of ordinaries as then existing.
The act of 1789, directing the manner of granting probate and administration, gives that power to the county Courts in those counties where such Courts were established, and, in the other counties, leaves it to the ordinaries.
The statute of H. 8 is not in force in South Carolina. The common law is,
GRIFFITH The doctrine, therefore, relative to the subject under
consideration is the same in South Carolina as in EngFRAZIER, land ; and the power of the ordinary is the same.
That it has been the practice of the ordinary Court to grant administration durante absentia, the Defendant does not deny, but urges that it has never, until the present case, been granted after probate by the executor. Perhaps not; but the reason is that no such case has before occurred. If it had, there is no doubt that the ordinary Court would have granted administration as it has now done. The Courts of the same description in England would have done the same. If they had not, the legislature would have interfered.
2. The judgment of the ordinary is conclusive that he acted judicially, and upon a subject properly cusa nizable by his Court. Therefore, even admitting that he erred in granting the letters of administration to Lamotte, yet Lamotte was administrator de facto, and his acts bound the estate of Salvadore, until those letters should be revoked.
That the subject was one properly cognizable by the ordinary, cannot be denied. He liad jurisdiction, under the equity of the statutes already cited, to grant temporary administration. He had jurisdiction to ascertain whether or not there was a will of personal property; and no prohibition would lie to his proceedings. In a contest between two persons of the same name, both claiming to be executor, he might decide which of the two was entitled to administer the estate. He was competent to put such a construction upon the statutes as he might think correct, and to ascertain his powers growing out of the equity of those statutes. His judgment, therefore, in the present case, unless reversed on appeal to the Court of common pleas of South Carolina, was conclusive in every other Court where it might come incidentally in question. Yet this Court is now called upon not only to declare the judgment of the ordinary void, and to repurse the same, but to reverse, also, that of the appellate Court by which his judgment has been confirmed.
3. The judgment on which the execution in this case